Citation Nr: 0104897
Decision Date: 02/16/01 Archive Date: 02/20/01
DOCKET NO. 99-15 944 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to an increased evaluation for residuals of a
shell fragment wound of the right posterior chest, currently
evaluated as 10 percent disabling.
2. Entitlement to an increased (compensable) evaluation for
residuals of a shell fragment wound of the right thigh.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Phillip L. Krejci, Counsel
INTRODUCTION
The veteran had active service from March 1943 to February
1946.
This appeal comes to the Board of Veterans' Appeals (Board)
from an August 1998 RO rating decision that denied increased
ratings for residuals of shell fragment wounds of the right
posterior chest (rated 10 percent) and right thigh (rated 0
percent). The veteran had a Board hearing on these issues in
January 2001.
REMAND
At his Board hearing, the veteran asserted that his residuals
of shell fragment wounds of the right posterior chest and
right thigh had worsened; he maintained that the last VA
compensation examinations, in June 1998 and March 1999, did
not adequately address his disabilities; and he requested
another VA examination. After a review of the record, the
Board agrees that another VA examination would be helpful and
in keeping with the duty to assist the veteran with his
claims. Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be
codified at 38 U.S.C. § 5103A); Caffrey v. Brown, 6 Vet.App.
377 (1994).
Accordingly, the case is remanded for the following action:
1. The RO should have the veteran
undergo a VA orthopedic examination to
determine the severity of residuals of
shell fragment wounds of the right
posterior chest and right thigh. The
claims folder should be provided to and
reviewed by the examiner, and the
examination report should indicate that
such has been accomplished.
Based on review of historical medical
records (including service records
describing the wounds, and post-service
records) and current examination
findings, the doctor should indicate
whether the shell fragment wounds of the
right posterior chest and right thigh
involve muscle injuries. If muscle
injuries associated with the wounds are
found, the doctor should name the
involved muscles and muscle group
numbers, and should assess the severity
of the muscle injuries.
Related wound scars should be described,
including objective signs of pain and
tenderness. The doctor should detail all
current functional impairment from
residuals of shell fragment wounds of the
right posterior chest and right thigh.
2. Thereafter, the RO should review the
claims for increased ratings for
residuals of shell fragment wounds of the
right posterior chest and right thigh.
The RO should consider all applicable
diagnostic codes for rating the
disabilities. If the claims remain
denied, the veteran and his
representative should be issued a
supplemental statement of the case, and
given an opportunity to respond, before
the case is returned to the Board.
The veteran may submit additional evidence and argument on
the matters the Board has remanded to the RO. Kutscherousky
v. West, 12 Vet.App. 369 (1999).
L.W. TOBIN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).